Do Your Job Applications Cross the Legal Line? What They Can and Can’t Cover

Done right, hiring can be a fair and orderly process that results in a promising new hire – and the help your business needs. Handled incorrectly, however, it can open the door to discrimination and land you in legal hot water.

At every stage of employment -- from placing job advertisements to conducting interviews -- you must comply with federal, state and even local anti-discrimination laws. Key among them is Title VII of the Civil Rights Act, which protects against the legally protected characteristics of race, color, religion, sex and national origin.

What about your job applications? An important tool in your hiring process, job applications must follow certain legal parameters to avoid discrimination. Ask the wrong types of questions, or overlook mandatory disclosures, and your job applications could do more harm than help.

Let’s take a closer look at what your applications can and can’t cover to ensure fairness and airtight legal compliance:

1. “Ban the box”

Perhaps one of the biggest and fastest-growing legal requirements with job applications today, “ban the box” refers to the question, “Have you ever been convicted of a crime?” If your state or city has passed ban the box legislation, you can’t inquire about an applicant’s criminal record until the job interview – or, in some cases, after the applicant is qualified and offered a position. By delaying this type of questioning until later in the hiring process, ban the box legislation helps support a fairer and broader job market for the millions of people with criminal backgrounds.

As of January 2017, 24 states and more than 100 cities restrict criminal history questions on job applications. Depending on the state, the law may apply only to public employers, or to both public and private employers.

These 15 states ban the box with public employers only:

California

Colorado

Delaware

Georgia

Louisiana

Maryland

Missouri

Nebraska

New Mexico

New York

Ohio

Oklahoma

Tennessee

Virginia​

Wisconsin

Nine states ban the box with public and private employers:

Connecticut

Hawaii

Illinois

Massachusetts

Minnesota

New Jersey

Oregon

Rhode Island

Vermont

Plus … District of Columbia

If you’re in California, you should be aware that your state has additional restrictions with criminal history questioning. As of January 1, 2017, you’re prohibited from asking applicants about juvenile records or using this information to make employment decisions.

For all ban the box states, it’s important to understand that you’re still allowed to conduct a background check on an otherwise-qualified individual. Also, you’re not required to hire an individual with a criminal record. Rather, you must make every effort to shift the criminal history inquiry from the initial application stage to later in the hiring process.

Additional considerations: Ban the box laws may restrict questions about certain types of convictions, barring questions about non-conviction arrests or expunged records. Also, certain industries and jobs are exempt, such as positions in child care, health care, law enforcement and finance.

2. Other legal landmines to avoid

You’re using a job application that meets your state’s ban the box requirements. All set, right? Not so fast. Other items you shouldn’t ask or allude to with job applications are:

Marital status – Applicants shouldn’t have to circle Mr., Mrs., Ms. or Miss on the application.

Maiden name – Don’t ask, because this can hint at marital status, gender or national origin.

Gender – Avoid this unless sex is a legally recognized and bona-fide occupational qualification for the job.

Age – Typically, you can only verify if the applicant is 18 or older. Otherwise, ask for date of birth only if you’re certain of a legally recognized age requirement for the position. Another age-related question to avoid is the person’s high school and/or college graduation date.

Birthplace – Steer clear of this to prevent national origin or immigration discrimination.

Residence – Gone are the days when you could ask if a person rents or owns. Today, this could appear discriminatory against those who rent rather than own.

Type of discharge from military service – It’s unlawful in some states to discriminate on this basis.

Disability, health – Never ask medical questions – and don’t refer to medical or physical exams until you’ve made a conditional offer.

Citizenship – Citizenship-based discrimination is unlawful under the Immigration Reform and Control Act of 1986. Don’t ask “Are you a U.S. citizen,” “Do you have a work visa” or “Do you have a legal right to remain permanently in the U.S.?”

3. Legal disclosures for an added layer of protection

In addition to what your job applications CAN’T include, there’s the matter of what they can and SHOULD include. To comply with the various federal and state laws that apply to the hiring process, you should only use job applications with:

EEOC-approved question regarding the applicant’s ability to perform the essential functions of the job, with or without reasonable accommodation

General non-harassment clause with latest information regarding discrimination based on genetic information

Question about previous non-compete agreements

Legal inquiry about whether applicants are reapplying for a position after an extended military leave, alerting you that USERRA may apply

Disclaimer that the application is limited to a specific opening at a specific time, shielding your company from liability for claims outside those parameters

False statement warning to notify prospects that submitting false information will not be tolerated. Not only does this statement allow you to fire or disqualify dishonest employees, it protects you in case of employment litigation, because “application fraud” is an appropriate defense when charged with unlawfully terminating someone.

Other important disclosures that protect you from liability, such as an at-will employment statement and release to check references.

About the Author(s)

Jaime Lizotte is the HR Solutions Manager of ComplyRight, Inc. where she is focused on developing next generation products to replace traditional HR solutions, making HR management easier for employers.

Funded, in part, through a Cooperative Agreement with the U.S. Small Business Administration. All opinions, and/or recommendations expressed herein are those of the author(s) and do not necessarily reflect the views of the SBA.